Keith Mack
Witnesses are a crucial component of the legal system, providing important information or evidence to assist the court in reaching a decision. They are individuals who have first-hand knowledge of a matter or possess specialized knowledge in a specific area. While witnesses are not required to speak to lawyers before a trial, it is common for lawyers to request their testimony. Witnesses have the right to refuse to talk to the defence lawyer or investigator and can seek legal advice if they are concerned about their testimony. During a trial, witnesses must answer questions truthfully and directly, sticking to the facts without colouring their testimony. They have the right to speak in a language they are comfortable with and can request an interpreter. Witnesses should also be aware of their rights, such as the potential for early release of property held as evidence and the ability to seek permission to give evidence remotely under certain circumstances.
| Characteristics | Values |
|---|---|
| Purpose of a witness | To provide important information (evidence) to a court |
| Witness testimony | Firsthand accounts that can corroborate or refute claims made by parties involved |
| Types of witnesses | Lay witnesses, expert witnesses |
| Witness preparation | Understanding courtroom procedures, answering questions directly, being attentive, dressing neatly, turning off electronic devices |
| Witness rights | Speaking in a preferred language, seeking permission to give evidence remotely, receiving witness fees for testifying |
| Witness obligations | Complying with a subpoena or summons, cooperating with attorneys, testifying truthfully |
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Witness testimony
When preparing for a trial, lawyers on both sides will talk to potential witnesses to gather information and strategize. A witness may be asked to give a deposition, which is a statement taken outside the courtroom, usually in a lawyer's office, to help build the case. During this process, a word-for-word transcript is made, and the witness's testimony may encourage an early settlement.
In court, witnesses are required to answer questions truthfully and directly. They should stick to the facts and provide objective testimony, only sharing what they know and refraining from speculation. Witnesses have the right to speak in a language they are comfortable with and can request an interpreter if needed. It is important to be attentive, dress neatly, and act politely, as these factors can influence how the judge and jury perceive the witness's testimony.
Witnesses have certain rights and protections. For example, they can choose whether to speak to lawyers before the trial, although there may be consequences for not cooperating in a criminal case. If a witness has concerns about their testimony implicating them in a crime, they can seek independent legal advice beforehand. Additionally, witnesses have the right to request the return of their property held as evidence and may be entitled to a witness fee for the days they testify.
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Witness rights
Witnesses have certain rights and responsibilities when it comes to legal proceedings. In the US, the Victims' Rights Clarification Act of 1997 outlines that victims testifying at a trial have the right to attend public court proceedings, unless a judge decides their testimony would be impacted by hearing other testimonies. Victims who are not testifying do not need to be present at the trial, and a judge cannot order their exclusion simply because they may testify or allocute at the sentencing hearing. Victims and witnesses may be interviewed by law enforcement officers before a criminal complaint is filed, and their statements will be reported to the Assistant US Attorney.
Witnesses have the right to claim expenses for travel to and from the court and compensation for loss of earnings. They can also request special measures if they are vulnerable or intimidated, such as giving evidence via videolink. Witnesses can also ask to enter the court through a separate entrance from the defendant and their associates, and request interpretation services if they do not speak English.
Witnesses should be aware that they do not have to speak to the defence lawyer or investigator before the trial, although they may if they wish. If they choose to speak to the defence, they can bring another person of their choice to witness the interview. Witnesses should also be aware that their property may be held as evidence, and they may not get it back until the conclusion of the case.
In terms of testimony, witnesses should answer questions directly and truthfully, only speaking to what they know and remember. They should not try to memorise their testimony, as this may not sound truthful, and they should pay attention to all questions, answering accurately.
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Witness preparation
Understanding the Legal Process
- Familiarize yourself with courtroom procedures. Speak with the lawyer handling your case to understand what to expect during the trial, including the format of questioning and the role of different parties in the courtroom.
- Know your rights as a witness. Understand that you have the right to refuse an interview with the defence lawyer or investigator if you are not comfortable. You can also request to have an additional person of your choice present during any interviews.
Testimony Guidelines
- Always tell the truth. It is crucial to provide honest and accurate testimony. Stick to the facts as you know them and do not attempt to colour your testimony to favour any party.
- Answer questions directly and concisely. Respond to the questions asked without providing unnecessary details. If a question can be answered with a simple "yes" or "no," that is often sufficient. It is also acceptable to state that you do not know or do not remember certain details.
- Base your testimony on your own knowledge. Ensure that your testimony is based solely on your personal experiences and not on what you may have heard from other witnesses or during court proceedings.
Practical Considerations
- Turn off electronic devices. Before entering the courtroom or the lawyer's office, ensure that all cell phones and other electronic devices are turned off to avoid distractions or interruptions during the proceeding.
- Dress appropriately and be polite. Your appearance and demeanour can influence how the judge and jury perceive your testimony. Dress neatly, be courteous, and avoid behaviours like chewing gum.
- Stay attentive and alert. It is important to remain engaged during the proceeding. Listen carefully to the questions and provide proper and accurate answers. Indifference may cast doubt on your testimony.
Remember, witness preparation is a collaborative process, and it is essential to maintain open communication with the lawyer handling your case. They can provide specific instructions and address any concerns you may have before and during the trial.
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Witness fees
Federal law also sets witness fees for employees who appear as witnesses in certain capacities. For example, an employee appearing as a witness in an unofficial capacity when the United States or a state or local government is a party to the case is entitled to court leave. On the other hand, an employee who appears as a witness when the United States is not a party must use annual leave or leave without pay. Additionally, an employee who appears on behalf of a party other than the United States while on official duty or court leave should request an attendance fee from the court or party, which is then remitted to the employing agency.
The witness fee for federal employees is currently set at $30 per day for each day's attendance, including travel time to and from the place of attendance. If both attendance and travel occur on the same day, the witness is entitled to only one fee. Witnesses are also entitled to transportation expenses based on the means of transportation reasonably utilized, considering the nature, duration, location, and distance of travel.
It is important to note that a subpoena must be accompanied by the required witness fee to be properly served. If a witness under subpoena is not properly served with a witness fee, they are not obligated to honour the subpoena. This means that witnesses must be paid the required fee by law to ensure their appearance in court.
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Witness evidence
Court witnesses, as the name suggests, are those who provide evidence during a trial. They may be called upon by either the defence or prosecution to share their testimony and shed light on the situation. Adverse witnesses, also known as hostile witnesses, are those who may have a biased perspective or a conflicting interest in the case. Earwitnesses, on the other hand, testify based on what they have heard, rather than what they have seen.
Character witnesses are typically involved in criminal matters, offering insights into a party's reputation. Rebuttal witnesses are specifically chosen to counter other evidence presented in the case. Eyewitnesses have firsthand knowledge of an event, while alibi witnesses provide an account that could establish the defendant's whereabouts during the crime. Grand jury witnesses testify prior to an indictment, and material witnesses in criminal trials may be detained under specific circumstances outlined in 18 U.S. Code § 3144.
It is important to note that witnesses are generally presumed competent to testify, as per Rule 601. However, there are exceptions, such as individuals lacking personal knowledge of the case, those mentally incapable of testifying, or those with a privilege that exempts them from testifying. Depositions, which are word-for-word transcripts, are often conducted in a lawyer's office to help prepare for the trial. Witnesses are advised to answer questions directly and truthfully, sticking to the facts without colouring their testimony.
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Frequently asked questions
A witness is someone who can provide important information (evidence) to a court. Witnesses can be lay witnesses, who have personal knowledge of the matter, or expert witnesses, who possess specialised knowledge and provide expert testimony within their area of expertise.
A witness testifies, telling the court what they know. Witnesses can be called by either side in a court case and are required to answer questions from both sides and the judge. Witnesses are expected to be attentive, honest, and objective.
If you have a valid reason for not wanting to be a witness, you can ask a judge to cancel the subpoena or summons. If you do not show up to court, a lawyer can ask the judge to have you arrested and brought to court, and you may be found in contempt of court.
You should read the subpoena or summons carefully and contact the lawyer who is calling you to court to find out what you need to bring and when you need to be there. You may be asked to give a deposition before the trial, and you can choose whether or not to talk to the lawyers before the trial. On the day of the trial, dress neatly and be polite.
